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Employers Must Respect Transgender Workers’ Choice of Restroom

In April, the United States Equal Opportunity Commission ruled on a case involving a transgender individual’s right to use a female restroom at work, and whether the individual had been subjected to harassment at work because of bring transgender. In Lusardi v. McHugh, the plaintiff was hired as an employee with the U.S. Army Aviation and Missile Research Development and Engineering Center in Alabama in 2004. In 2007, the plaintiff discussed her gender identity with her supervisors. She also began the process of transitioning from a woman to a man. She changed her name in 2010 from a male one to a female one and also asked that the government change her name and sex on all personnel recorded.

The plaintiff had a meeting with her supervisors in 2010 to discuss the transition process. Her supervisors agreed that she would use a single-user restroom until after her surgery had been completed, and then she would use the women’s restroom. The whole staff was emailed about the plaintiff’s changes. On several occasions, the single-user restroom was out of order, so she used the women’s restroom. She was confronted shortly afterwards by her boss, who told her that she was making people uncomfortable and had to use the single-user restroom until she could show proof that her sex-change surgery was complete.

In addition to the issues about the restroom, one of her bosses kept referring to the plaintiff as “he”, “him”, and “sir”, in front of coworkers, contractors, and other people who had no knowledge of the situation. The boss said that it was a slip of the tongue. The plaintiff also complained to that boss about her team members not treating her as an equal.

The employee finally contacted the EEOC and filed a formal complaint. The EEOC concluded that she failed to prove that she was discriminated against or harassed. She appealed, and the decision was overturned. On appeal, it was found that the plaintiff was able to prove that she was denied access to the common female restrooms and that a boss referred to her repeatedly and intentionally by male names and pronouns. He also made hostile remarks regarding those same matters. It was ruled that these actions constituted a hostile work environment.

This decision was handed down from the EEOC, so it’s unclear whether federal courts will embrace the decision when they interpret the rights of transgender private sector employees. Federal courts are not legally bound by decisions of the EEOC.

However, for private sector employers, it’s critical to know that not handling issues involving transgender employees can lead to discrimination and retaliation claims, even though the issues have not been fully litigated in the courts. Title VII, which is the federal law that prohibits workplace discrimination and harassment because of certain factors does not expressly prohibit discrimination based on gender identity, but this ruling shows the potential liability employers can face when dealing with these issues. There are currently about 700,000 transgender individuals living in the U.S., and between 20 percent and 57 percent said they have experienced some form of discrimination. The most common is the denial of bathroom rights at work.

If you are an employer with a transgender employee, it would be wise if you allow the individual to use whatever restroom he or she chooses, and to avoid using offensive pronouns when referring to the individual. If you are a transgender employee and you feel that you have been discriminated against in the workplace, you should speak with an attorney. You may be able to file a complaint against your employer.

If you are an employer looking for guidance on how to follow the proper guidelines as they pertain to transgender employees, or if you are a transgender employee who has been discriminated against at work, call Micha Star Liberty, Oakland employment attorney, at 510-645-1000 or 415-896-1000. Our team will be happy to provide you with a free consultation on your case. Call to learn more about your legal options.